Shri Banarsi Dass Aggarwal vs Oriental Insurance
2022 Latest Caselaw 11889 HP

                              1


IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
          ON THE 31st    DAY OF DECEMBER, 2021
                          BEFORE




                                                         .
    HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN





             FIRST APPEAL AGAINST ORDER NO.
                         150 OF 2021





 Between:

     SANJEEV KUMAR AGGARWAL, S/O




     SHRI BANARSI DASS AGGARWAL,
     R/O HOME NO. 9/1 JATOG, SHIMLA­
     8, TEHSIL AND DISTRICT SHIMLA,
     H.P.


                          ...APPELLANT

 (BY MR. BHIM           RAJ   SHARMA,


 ADVOCATE)




    AND





            1. NEW INDIA INSURANCE
            COMPANY             LTD.,
            DIVISIONAL    OFFICE     :





            (351400)   SHIMLA    IIIrd
            FLOOR, BLOCK 7, SDA
            COMPLEX, SHIMLA­171009.
            2. SH. MOHAN LAL, S/O
            LATEL SH. ROOP CHAND,
            RESIDENT OF DANSHAR




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                (SOHAL) P.O. SAINJ, SUB
                TEHSIL     DHAMI      (ST)
                DISTRICT SHIMLA, H.P.

                              ...RESPONDENTS




                                                                  .

                 This petition coming on for hearing this day,                 this

    Court passed the following:





                 JUDGMENT

Whether a person licensed to drive a light motor vehicle

is ipso facto entitled to drive the transport vehicle in that category,

is a question to be considered in this case? However, before

answering the question, it is necessary to recapitulate the facts of

the case.

2. Claimants/respondents No. 2 and 3 filed a petition

under Section 10 of the Employees' Compensation Act, 1923 for

grant of compensation on account of death of their son one Dharam

Prakash, who is stated to have died during the course of his

employment as a driver with the present appellant.

3. Since the findings regarding death, dependency etc

have attained finality, at least so far as the Insurance Company is

concerned, the only question that therefore needs to be answered,

has already been formulated (supra).

4. However, I find that the issue is no­longer res­integra

in view of the decision rendered by a three­judge Bench of Hon'ble

Supreme Court in "Mukund Dewagan versus Oriental Insurance

.

Company Limited", reported in (2017) 14 Supreme Court Cases

663, wherein the preposition of law was summarised by the Court

as under:

(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles

are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.

(ii) A transport vehicle and omnibus, the gross vehicle weight of

either of which does not exceed 7500 kg. would be a light motor

vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in

section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road­roller, the "unladen weight"

of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle

of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.

(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)

(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the

aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.

(iv) The effect of amendment of Form 4 by insertion of "transport

.

vehicle" is related only to the categories which were substituted in

the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no

requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."

5. Adverting to the facts, it would be noticed that learned

Tribunal fastened the liability upon the appellant being the owner

only on the basis of reasoning accorded in para­27 of the judgment,

which reads as under:

"27.In the present case, it is evident from Ext. PW1/A that Shri

Dharam Parkash was entitled to drive a Light Motor Vehicle

Transport Cab. The copy of RC Ext. RW1/A shows that vehicle

No. HP71­0615 is classified as a Medium Goods Vehicle.

Presently, Shri Dharam Parkash was not holding a valid and

effective driving licence to drive a Medium Goods Vehicle.

Therefore, the insurance company cannot be held liable to pay

any compensation to the petitioners."

6. Records of the case would go to reveal that the vehicle

in question was a Medium Goods Vehicle and unladen weight

thereof was less than 7500 kgs i.e. 3830 kg. However, as per

Mukund Dewagan's judgment (supra) it has been held that the type

of vehicle would not matter, as any vehicle which is less than 7500

kg of weight, a license to drive a light motor vehicle will be valid to

.

drive a transport vehicle of all categories, as is evident from the

portion of the judgment extracted above.

7. Applying the ratio of law laid down in Mukund

Dewagan's case, in the present case also the driver was authorized

to drive Swaraj Mazda, though he was not having a driving license

to drive a transport vehicle. In the present case also, the gross

vehicle weight was not more than 7500 kg, hence the appeal is

bound to be allowed on the ground that the appellant was having

effective driving license to drive the vehicle in question.

8. Having said so, obviously the judgment passed by

learned Tribunal below cannot sustain and the same is accordingly

set aside only to the extent of fastening of liability upon the

appellant.

9. Since there is no appeal against the remaining part of

award, the same is kept intact and otherwise calls for no

interference. Meaning thereby, the liability to satisfy the award

amount alongwith interest is fastened upon the Insurance

Company i.e. respondent No. 1, who shall deposit the same in the

Registry within 60 days from today.

10. Accordingly, the instant appeal is disposed of in the

.

aforesaid terms, leaving the parties to bear their own costs.

(Tarlok Singh Chauhan)

Judge

December 31, 2021

Kalpana